Legal Eagle: Proposed reforms for those lacking capacity

Those receiving care in a hospital or care home may have their routine decided for them, and they may not be allowed to leave.

The arrangements may take away some of their freedom and in some cases may amount to a ‘deprivation of liberty’.

This is not always a bad thing, and it is often necessary when caring for someone, but it must be in their best interests.

The DoLS are a set of checks that aim to make sure that any care that restricts a person’s liberty is appropriate and in their best interests.

If a care home or hospital plans to deprive a person of their liberty, the DoLS requires that they follow a strict process.

This includes requesting the local authority to authorise the arrangement and carrying out six assessments.

It also includes aspects such as providing the person with a representative, giving them the right to challenge the deprivation of liberty through the courts and ensuring the deprivation of liberty is reviewed.

What are the proposed reforms?

In March 2017, an independent commission that reviews the laws of England and Wales, reviewed the DoLS due to a rise in ten times the number of deprivation of liberty cases.

Local authorities have been under significant pressure and there are widespread reports of case backlogs and breached timescales, meaning safeguards have not always been used and vulnerable people have been left without protection.

Last year 100,000 people who required the authorisation did not receive it.

The commission found that the DoLS system is “in crisis”. They proposed that it be replaced with a new ‘Liberty Protection Safeguards’ (LPS). The key changes mean the new system would:

l Include settings such as supported living and domestic settings – not just a care home or a hospital. It could also apply to more than one place at a time.

l Extend who is responsible for giving authorisations to include the NHS – not just the local authority.

l Apply to those aged 16 and above, rather than 18 and above.

l Change urgent authorisations so they could only be used to enable life-sustaining treatment or prevent a person’s condition deteriorating.

l Drop the requirement for a best interest assessment in every case. Instead these assessments would focus only on more serious cases where concerns are raised that arrangements are contrary to a person’s wishes.

The commission also recommends wider reforms to require decision makers to place greater weight on a person’s wishes and feelings when making decisions for anyone who lacks capacity.

It is now up to the government to decide whether to take the commission’s recommendations forward.